CASCADE BANCORP INDEMNIFICATION AGREEMENT
This
Indemnification Agreement (this “Agreement”) dated as of [_____], is made
between Cascade Bancorp, an Oregon corporation (the “Company”), and [_____]
(“Indemnitee”).
RECITALS
A. Indemnitee
is [currently serving] [willing to serve] as a director, officer, employee
and/or agent of the Company, and in such capacity Indemnitee [is performing]
[will perform] valuable services for the Company.
B. The
Company’s Articles of Incorporation (the “Articles”) provide for the
indemnification of members of its Board of Directors to the full extent
permitted by the Oregon Business Corporation Act (the “Act”).
C. The
Act is not exclusive in the rights provided, and it contemplates that agreements
may be entered into between the Company and the members of its Board of
Directors, as well as its officers, employees and/or agents with respect to the
indemnification of such directors, officers, employees and/or
agents.
D. In
order to induce Indemnitee to [continue to] serve as a director, officer,
employee and/or agent of the Company, the Company has agreed to enter into this
Agreement with Indemnitee.
AGREEMENT
In
consideration of the recitals above, the mutual covenants and agreements herein
contained, and Indemnitee’s [continued] service as a director, officer, employee
and/or agent, as the case may be, of the Company after the date hereof, the
parties to this Agreement agree as follows:
1. Indemnity of
Indemnitee
1.1 Scope. If Indemnitee
was or is made a party, or is threatened to be made a party, to or is otherwise
involved (including, without limitation, as a witness) in any Proceeding (as
defined below), the Company agrees to and shall hold harmless and indemnify
Indemnitee from and against any and all losses, claims, damages, liabilities or
expenses (including attorneys’ fees, judgments, fines, taxes or penalties,
amounts paid in settlement and other expenses incurred in connection with such
Proceeding) (collectively, “Damages”) to the full extent permitted by law,
notwithstanding that such indemnification is not specifically authorized by this
Agreement, the Articles, the bylaws of the Company (the “Bylaws”), the Act or
otherwise.
In the
event of any change, after the date of this Agreement, in any applicable law,
statute or rule regarding the right of an Oregon corporation to indemnify a
member of its Board of Directors, such changes, to the extent that they would
expand Indemnitee’s rights hereunder, shall be within the purview of
Indemnitee’s rights and the Company’s obligations hereunder, and, to the extent
that they would narrow Indemnitee’s rights hereunder, shall be excluded from
this Agreement.
1.2 Nonexclusivity. The
indemnification provided by this Agreement shall not be deemed exclusive of any
rights to which Indemnitee may be entitled under the Act, the Articles, the
Bylaws, any agreement, any general or specific action of the Company’s Board of
Directors, vote of shareholders or otherwise. To the extent that
there is a conflict or inconsistency between the terms of this Agreement and the
Articles or Bylaws, it is the intent of the parties hereto that the Indemnitee
shall enjoy the greater benefits regardless of whether contained herein, in the
Articles or in the Bylaws. No amendment or alteration of the Articles
or Bylaws or any other agreement shall adversely affect the rights provided to
Indemnitee under this Agreement.
1.3 Partial
Indemnity. If Indemnitee is entitled under any provision of
this Agreement to indemnification by the Company for some or a portion of
Indemnitee’s expenses incurred in any Proceeding, but not, however, for all of
the total amount thereof, the Company shall nevertheless indemnify Indemnitee
for the portion thereof to which Indemnitee is entitled.
1.4 Burden of
Proof. In connection with any determination by the Board of
Directors, any court or otherwise as to whether Indemnitee is entitled to be
indemnified hereunder, the Board of Directors or court shall presume that
Indemnitee has satisfied the applicable standard of conduct and is entitled to
indemnification, and the burden of proof shall be on the Company or its
representative to establish, by clear and convincing evidence, that Indemnitee
is not so entitled.
1.5 Reliance as Safe
Harbor. Indemnitee shall be entitled to indemnification for
any action or omission to act undertaken (i) in good faith reliance upon the
records of the Company, including its financial statements, or upon information,
opinions, reports or statements furnished to Indemnitee by the officers or
employees of the Company or any of its subsidiaries in the course of their
duties, or by committees of the Board of Directors, or by any other person as to
matters Indemnitee reasonably believes are within such other person’s
professional or expert competence, or (ii) on behalf of the Company in
furtherance of the interests of the Company in good faith in reliance upon, and
in accordance with, the advice of legal counsel or accountants, provided such
legal counsel or accountants were selected with reasonable care by or on behalf
of the Company. In addition, the knowledge and/or actions, or
failures to act, of any other director, officer, agent or employee of the
Company shall not be imputed to Indemnitee for purposes of determining the right
to indemnity hereunder.
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1.6 Definition of
Proceeding. For purposes of this Agreement, “Proceeding” shall mean any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative and whether formal or informal, in
which Indemnitee is, was or becomes involved by reason of the fact that
Indemnitee is or was a director, officer, employee and/or agent of the Company
or that, being or having been such a director, officer, employee and/or agent,
Indemnitee is or was serving at the Company’s request as a director, officer,
partner, trustee, employee or agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
(collectively a “Related Company”), including service with respect to an
employee benefit plan, whether the basis of such proceeding is alleged action
(or inaction) by Indemnitee in an official capacity as a director, officer,
partner, trustee, employee or agent or in any other capacity while serving as a
director, officer, partner, trustee, employee or agent; provided, however, that,
except with respect to an action to enforce the provisions of this Agreement,
“Proceeding” shall not include any action, suit or proceeding instituted by or
at the direction of Indemnitee unless such action, suit or proceeding is or was
authorized by the Company’s Board of Directors.
1.7 Survival. The
indemnification provided under this Agreement shall apply to any and all
Proceedings, notwithstanding that Indemnitee has ceased to be a director,
officer, partner, trustee, employee or agent of the Company or a Related
Company.
1.8 Liability
Insurance. The Company shall use its best efforts to purchase
and maintain a policy or policies of insurance with reputable insurance
companies with A.M. Best ratings of “A” or better, providing Indemnitee with
coverage for any liability asserted against, or incurred by, Indemnitee or on
Indemnitee’s behalf by reason of the fact that Indemnitee is or was a director,
officer, employee and/or agent of the Company or that, being or having been such
a director, officer, employee and/or agent, Indemnitee is or was serving at the
Company’s request as a director, officer, partner, trustee, employee or agent of
another foreign or domestic corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, including service with respect to an
employee benefit plan, whether or not the Company would have the power to
indemnify Indemnitee against such liability under the provisions of this
Agreement. Such insurance policies shall have coverage terms and
policy limits at least as favorable to Indemnitee as the insurance coverage
provided to any other director or officer of the Company. If the
Company has such insurance in effect at the time the Company receives from
Indemnitee any notice of the commencement of a Proceeding, the Company shall
give prompt notice of the commencement of such Proceeding to the insurers in
accordance with the procedures set forth in the policy. The Company
shall thereafter take all necessary or desirable action to cause such insurers
to pay, on behalf of Indemnitee, all amounts payable as a result of such
proceeding in accordance with the terms of such policy.
2. Expense
Advances
2.1 Generally. Subject to
Section 2.2, the right to indemnification of Damages conferred by Section 1
shall include the right to have the Company pay Indemnitee’s expenses in any
Proceeding as such expenses are incurred and in advance of such Proceeding’s
final disposition (such right is referred to hereinafter as an “Expense
Advance”). The Indemnitee’s right to an Expense Advance is absolute
and shall not be subject to any condition that the Company’s Board of Directors
shall not have determined that the Indemnitee is not entitled to be indemnified
under applicable law.
2.2 Conditions to Expense
Advance. The Company’s obligation to provide an Expense Advance is
subject to the following conditions:
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2.2.1 Undertaking. If the
Proceeding arose in connection with Indemnitee’s service as a director, officer,
employee and/or agent of the Company (and not in any other capacity in which
Indemnitee rendered service, including service to any Related Company), then
Indemnitee or his or her representative shall have executed and delivered to the
Company a written undertaking, which must be an unlimited general obligation,
but shall be unsecured and interest-free and shall be accepted without reference
to Indemnitee’s financial ability to make repayment, by or on behalf of
Indemnitee to repay all Expense Advances if and to the extent that it shall
ultimately be determined by a final, unappealable decision rendered by a court
having jurisdiction over the parties and the question that Indemnitee did not
meet the standard of conduct described in 60.391 of the Act.
2.2.2 Cooperation.
Indemnitee shall give the Company such information and cooperation as it may
reasonably request and as shall be within Indemnitee’s power.
2.2.3 Affirmation.
Indemnitee shall furnish, upon request by the Company and if required under
applicable law, a written affirmation of Indemnitee’s good faith belief that he
or she has met the standard of conduct described in 60.391 of the
Act.
3. Priority
3.1 Company Fully and Primarily
Responsible. Given that certain Jointly Indemnifiable Claims may arise
due to the relationship between the Fund Entities and the Company, and the
service of Indemnitee as a Director of the Company at the request of the Fund
Entities, the Company acknowledges and agrees that the Company shall be fully
and primarily responsible for the indemnification and advancement of expenses of
Indemnitee in connection with any such Jointly Indemnifiable Claim, pursuant to
and in accordance with the terms of this Agreement, irrespective of any right of
recovery Indemnitee may have from the Fund Entities or any of their respective
Affiliates. Under no circumstances shall the Company be entitled to
any right of contribution by the Fund Entities or any of their Affiliates and no
right of recovery Indemnitee may have from the Fund Entities or any of their
respective Affiliates shall reduce or otherwise alter the rights of Indemnitee
or the obligations of the Company under this Agreement.
3.2 Definitions. For
purposes of this Section 3:
3.2.1 Affiliate.
“Affiliate” shall mean, with respect to any person, any person directly or
indirectly controlling, controlled by or under common control with, such other
person. For purposes of this definition, (i) “control” (including,
with correlative meanings, the terms “controlled by” and “under common control
with”) when used with respect to any person, means the possession, directly or
indirectly, of the power to cause the direction of management and/or policies of
such person, whether through the ownership of voting securities by contract or
otherwise or for purposes of the Bank Holding Company Act of 1956, as amended,
and (ii) “person” has the meaning given to it in Section 3(a)(9) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any
successor statute and as used in Sections 13(d)(3) and 14(d)(2) of the
Exchange Act.
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3.2.2 Fund Entities. “Fund
Entities” shall mean any corporation, limited liability company, partnership,
joint venture, trust, employee benefit plan or other entity or enterprise (other
than the Company or any other corporation, limited liability company,
partnership, joint venture, trust, employee benefit plan or other entity or
enterprise as to which Indemnitee has agreed, on behalf of the Company or at the
Company’s request, to serve as a director, officer, employee or agent and which
service is covered by this Agreement) from whom Indemnitee may be entitled to
indemnification or advancement of expenses with respect to which, in whole or in
part, the Company may also have an indemnification or advancement
obligation.
3.2.3 Jointly Indemnifiable
Claims. “Jointly Indemnifiable Claim” shall mean any claim for which
Indemnitee may be entitled to indemnification both from any Fund Entity, on the
one hand, and the Company, on the other hand, pursuant to applicable law, any
indemnification agreement or the certificate of incorporation, bylaws,
partnership agreement, operating agreement, certificate of formation,
certificate of limited partnership or comparable organizational documents of the
Company or such Fund Entity.
4. Procedures for
Enforcement
4.1 Enforcement. In the
event that a claim for indemnity, an Expense Advance or otherwise is made
hereunder and is not paid in full within twenty calendar days after written
notice of such claim is delivered to the Company, Indemnitee may, but need not,
at any time thereafter bring suit against the Company to recover the unpaid
amount of the claim (an “Enforcement Action”).
4.2 Presumptions in Enforcement
Action. In any Enforcement Action the following presumptions (and
limitation on presumptions) shall apply:
(a) The
Company shall conclusively be presumed to have entered into this Agreement and
assumed the obligations imposed on it hereunder in order to induce Indemnitee to
[continue to] serve as a director, officer, employee and/or agent, as the case
may be, of the Company;
(b) Neither
(i) the failure of the Company (including the Company’s Board of Directors,
independent or special legal counsel or the Company’s shareholders) to have made
a determination prior to the commencement of the Enforcement Action that
indemnification of Indemnitee is proper in the circumstances nor (ii) an actual
determination by the Company, its Board of Directors, independent or special
legal counsel or shareholders that Indemnitee is not entitled to indemnification
shall be a defense to the Enforcement Action or create a presumption that
Indemnitee is not entitled to indemnification hereunder; and
(c) If
Indemnitee is or was serving as a director, officer, employee, trustee or agent
of a corporation of which a majority of the shares entitled to vote in the
election of its directors is held by the Company or in an executive or
management capacity in a partnership, joint venture, trust or other enterprise
of which the Company or a wholly-owned subsidiary of the Company is a general
partner or has a majority ownership, then such corporation, partnership, joint
venture, trust or enterprise shall conclusively be deemed a Related Company and
Indemnitee shall conclusively be deemed to be serving such Related Company at
the request of the Company.
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4.3 Attorneys’ Fees and Expenses
for Enforcement Action. In the event Indemnitee is required to bring an
Enforcement Action, the Company shall indemnify and hold harmless Indemnitee
against all of Indemnitee’s fees and expenses in bringing and pursuing the
Enforcement Action (including attorneys’ fees at any stage, including on
appeal); provided, however, that the Company shall not be required to provide
such indemnity for such attorneys’ fees or expenses if a court of competent
jurisdiction determines that each of the material assertions made by Indemnitee
in such Enforcement Action was not made in good faith or was
frivolous.
5. Limitations on Indemnity;
Mutual Acknowledgment
5.1 Limitation on
Indemnity. No indemnity pursuant to this Agreement shall be provided by
the Company:
(a) On
account of any suit in which a final, unappealable judgment is rendered against
Indemnitee for an accounting of profits made from the purchase or sale by
Indemnitee of securities of the Company in violation of the provisions of
Section 16(b) of the Exchange Act;
(b) For
Damages that have been paid directly to Indemnitee by an insurance carrier under
a policy of officers’ and directors’ liability insurance maintained by the
Company;
(c) On
account of Indemnitee’s conduct which is finally adjudged to fall within one or
more of the exclusions set forth in the Act; or
(d) If
a final decision by a court having jurisdiction in the matter shall determine
that such indemnification is not lawful.
5.2 Regulatory
Limitation. Notwithstanding anything herein to the contrary (including
without limitation the last sentence of Section 2.1), the Company shall not be
required to make any indemnification payment (including without limitation any
Expense Advance) to the extent such payment is prohibited or limited pursuant to
12 U.S.C. 1828(k) or by 12 C.F.R. Part 359 and any such payment made shall be in
compliance with requirements imposed pursuant to 12 U.S.C. 1828(k) or by 12
C.F.R, Part 359 (including without limitation any required agreements of
Indemnitee)
6. Notification and Defense of
Claim
6.1 Notification.
Promptly after receipt by Indemnitee of notice of the commencement of any
Proceeding, Indemnitee will, if a claim in respect thereof is to be made against
the Company under this Agreement, notify the Company of the commencement
thereof; but the omission so to notify the Company will not relieve the Company
from any liability which it may have to Indemnitee under this Agreement unless
and only to the extent that such omission can be shown to have actually and
materially prejudiced the Company’s ability to defend the
Proceeding.
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6.2 Defense of Claim.
With respect to any such Proceeding as to which Indemnitee notifies the Company
of the commencement thereof:
(a) The
Company may participate therein at its own expense;
(b) The
Company, by itself or jointly with any other indemnifying party similarly
notified, may assume the defense thereof, with counsel satisfactory to
Indemnitee. After notice from the Company to Indemnitee of its election to
assume the defense thereof, the Company shall not be liable to Indemnitee under
this Agreement for any legal or other expenses (other than reasonable costs of
investigation) subsequently incurred by Indemnitee in connection with the
defense thereof unless (i) the employment of counsel by Indemnitee has been
authorized by the Company, (ii) Indemnitee shall have reasonably concluded that
there may be a conflict of interest between the Company and Indemnitee in the
conduct of the defense of such action, or (iii) the Company shall not in fact
have employed counsel to assume the defense of such action, in each of which
cases the fees and expenses of counsel shall be at the expense of the Company.
The Company shall not be entitled to assume the defense of any action, suit or
proceeding brought by or on behalf of the Company or as to which Indemnitee
shall have made the conclusion provided for in (ii) above. For the
avoidance of doubt, Indemnitee shall not be required to utilize counsel selected
by or representing the Company or any other Indemnitee without the express
consent of Indemnitee, which consent may be withheld in his or her
discretion;
(c) The
Company shall not be liable to indemnify Indemnitee under this Agreement for any
amounts paid in settlement of any Proceeding effected without its written
consent;
(d) The
Company shall not settle any action or claim in any manner which would impose
any penalty or limitation on Indemnitee without Indemnitee’s written consent;
and
(e) Neither
the Company nor Indemnitee will unreasonably withhold its, his or her consent to
any proposed settlement.
(f) To
the fullest extent permitted by law, the Company’s assumption of the defense of
a Proceeding pursuant to this Section 6 will constitute an irrevocable
acknowledgement by the Company that any expenses incurred by or for the account
of Indemnitee in connection therewith are indemnifiable by the Company
hereunder.
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7. Subrogation
In the
event of payment under this Agreement by or on behalf of the Company, except as
provided in Section 3, the Company shall be subrogated to the extent of such
payment to all of the rights of recovery of Indemnitee, who shall execute all
papers that may be required and shall do all things that may be necessary to
secure such rights, including without limitation, the execution of such
documents as may be necessary to enable the Company effectively to bring suit to
enforce such rights. The Company shall pay or reimburse all expenses
actually and reasonably incurred by Indemnitee in connection with such
subrogation.
8. Severability
Nothing
in this Agreement is intended to require or shall be construed as requiring the
Company to do or fail to do any act in violation of applicable law. The
Company’s inability, pursuant to court order, to perform its obligations under
this Agreement shall not constitute a breach of this Agreement. The provisions
of this Agreement shall be severable, as provided in this Section 8. If this
Agreement or any portion hereof shall be invalidated on any ground by any court
of competent jurisdiction, then the Company shall nevertheless indemnify
Indemnitee to the full extent permitted by any applicable portion of this
Agreement that shall not have been invalidated, and the balance of this
Agreement not so invalidated shall be enforceable in accordance with its
terms.
9. Governing Law; Binding
Effect; Amendment and Termination; Specific Performance
(a) This
Agreement shall be interpreted and enforced in accordance with the laws of the
State of Oregon.
(b) This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the parties hereto and their respective successors (including any direct or
indirect successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business and/or assets of the Company), assigns,
spouses, heirs, executors and personal and legal representatives. The
Company shall require and cause any successor(s) (whether directly or
indirectly, whether in one or a series of transactions, and whether by purchase,
merger, consolidation, or otherwise) to all or a significant portion of the
business and/or assets of the Company and/or its subsidiaries (on a consolidated
basis), by written agreement in form and substance reasonably satisfactory to
Indemnitee, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform if
no such succession had taken place; provided that no such assumption shall
relieve the Company from its obligations hereunder and any obligations shall
thereafter be joint and several.
(c) No
amendment, modification, termination or cancellation of this Agreement shall be
effective unless in writing signed by both parties.
(d) The
parties recognize that if any provision of this Agreement is violated by the
parties hereto, Indemnitee may be without an adequate remedy at
law. Accordingly, in the event of any such violation, Indemnitee
shall be entitled, if Indemnitee so elects, to institute proceedings, either in
law or at equity, to obtain damages, to obtain specific performance, to enjoin
such violation, or to obtain any relief or any combination of the foregoing as
Indemnitee may elect to pursue.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the parties have executed this Agreement on and as of the day
and year first above written.
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By:
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INDEMNITEE:
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[Signature
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